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DeSantis’ Supreme Court fight reveals division among Black legislators

The headline in a local paper stung Democrats: "Black Democrats rally around Ron DeSantis as he attempts to save his pick for Florida Supreme Court,'' read the Sun-Sentinel. "It may have made things worse,'' said Rep. Shevrin Jones, a Hollywood Democrat, who was invited but did not attend.
Palm Beach County Judge Renatha Francis speaks during a press conference in Miramar, Florida on Wednesday.
Palm Beach County Judge Renatha Francis speaks during a press conference in Miramar, Florida on Wednesday. [ MATIAS J. OCNER | Miami Herald ]
Published Sep. 11, 2020

TALLAHASSEE — The decision by Gov. Ron DeSantis to go to Broward County this week and have Democrats join him to complain about his derailed Supreme Court pick not only proved fruitless, as the court rejected his argument Friday, it created tensions among members of Florida’s Legislative Black Caucus.

"The governor is stoking division in our community,'' said Sen. Perry Thurston, a Fort Lauderdale Democrat, who was not invited to join the governor at his press conference in Miramar Wednesday. “We don’t need a Republican governor sowing division between the Caribbean community and African-American community.”

The furor began when state Rep. Geraldine Thompson, a Democrat from Windemere, filed a lawsuit in July accusing the governor of violating the Constitution by appointing Palm Beach County Judge Renatha Francis to the state’s highest court when she wasn’t yet eligible.

Francis, 42, was born in Jamaica and the governor touted the fact she would bring diversity to the court as the only woman and the first Black justice since Peggy Quince retired last year. She was one of nine finalists, and the only one who is Black, selected for two Supreme Court vacancies from a field of 32 candidates that ncluded six other Black lawyers and judges chosen by the Judicial Nominating Commission, which the governor controls. The governor also appointed John Couriel, a Miami lawyer who is white.

Thompson, who is Black, accused the Judicial Nominating Commission of overlooking several Black judges with more experience in order to allow the governor to select Francis, whose conservative judicial philosophy was more aligned with the Federalist Society ideals the governor sought.

A unanimous Supreme Court agreed with Thompson and ruled that because Francis had not been a 10-year member of the Florida Bar, as the Constitution requires, she was ineligible to serve on the Supreme Court at the time of the appointment.

It was an embarrassing defeat for DeSantis and was delivered by a court he had vowed to make one the of the most conservative in the nation.

A divided Black caucus

The legal conflict over Francis' appointment, however, underscored an internal divide within the 29-member Legislative Black Caucus. When Francis' name appeared on the short list of nominees in January, several members of the caucus formed a committee to speak with her to assess her skills. The members of the committee were willing to endorse Francis while others in the caucus, like Thompson whose husband is a judge, thought Francis was unprepared.

In February, the caucus sent a letter to the governor acknowledging that Francis was ineligible to take the job but urged him to hold the position open until she could, a situation the court later said was not allowed.

On Wednesday as he faced a deadline to answer the court, DeSantis chose to exploit the divide to find allies in his quest to defend his appointment.

With the help of his chief of staff, Broward native Shane Strum, the governor assembled prominent Broward elected officials such as county Mayor Dale Holness, Lauderdale Lakes Mayor Hazelle Rogers, and Miramar Mayor Wayne Messam, all Democrats and all Blacks of Caribbean descent. They gathered at Miramar City Hall for a press conference to assail the lawsuit and to send a message.

Miramar is a city with a large Caribbean-American population, and Broward County has the state’s largest number of registered voters who are Black Democrats. Joining them were other prominent Black leaders, such as Eugene Pettis, the former chair of the Florida Bar, and Rep. Dotie Joseph, a North Miami Democrat, also of Caribbean descent. Notably absent was anyone from Palm Beach County, where Francis lives and works.

But it was the headline in a local paper that stung the most for the Democrats: "Black Democrats rally around Ron DeSantis as he attempts to save his pick for Florida Supreme Court,'' read the Sun-Sentinel.

"It may have made things worse,'' said Rep. Shevrin Jones, a Hollywood Democrat, who was invited but did not attend. “Having that press conference and not inviting the chair of the Black Legislative Caucus was a mistake.”

Joseph began her remarks by saying the Legislative Black Caucus "voted to support the appointment of Judge Renatha Francis,'' and that stirred more controversy.

Thompson held a press conference Thursday and criticized Black elected officials who appeared with the governor.

Rep. Geraldine Thompson, D-Windermere, debates a bill during session in Tallahassee.
Rep. Geraldine Thompson, D-Windermere, debates a bill during session in Tallahassee. [ STEVE CANNON | AP ]

She called it “one of the most shocking things that I think I’ve seen — to have Democrats who are supporting a Republican governor who has not acted in the best interest of African Americans throughout the State of Florida.”

Thompson criticized Joseph for suggesting she was speaking for the Black Caucus, which endorsed the appointment of Francis to attain the goal of diversity but has not taken a position since the court ruled her appointment in violation of the Constitution.

Joseph, a lawyer, on Thursday backpedaled from her statement at the press conference.

"The caucus position is we stand behind our support of the appointment of diversity,'' she said. “My remarks were a bit rushed.”

A political issue

Thompson also scolded Francis for taking part in the press conference, and speaking, because judges are prohibited from participating in partisan political events.

"I thought that was an extreme lack of judgment on this individual who wants to serve on the Florida Supreme Court to allow herself to be pulled into a partisan political event,'' Thompson said.

Jones agreed. "Judge Francis should have never been there,'' he said. “She should not have been used as a prop for this conversation.”

Jones said he supports diversity on the bench but faults DeSantis for failing to follow the rules, raising questions about his sincerity in seeking a genuinely diverse court.

"The governor is a smart man and people in that office are smart,'' he said. “Like my mom used to say when i did something wrong at school: ‘You knew better.’”

Adding fuel to the fire is the comparison of Francis by the governor’s supporters to Clarence Thomas, the Black justice on the U.S. Supreme Court who is admired by conservatives but scorned by many Blacks.

Joseph made a point at the press conference that Francis would not be like Thomas.

“When someone refers to Clarence Thomas rightly or wrongly, we are talking about someone who exemplifies the expression that all skin folk ain’t kinfolk,” and "who benefits from affirmative action yet, when placed in a position to protect race, based on civil rights, they seem to attack,'' she said.

Joseph said that she and her colleagues in the Legislative Black Caucus concluded that while Francis “may be conservative and a member of the Federalist Society none of those things, in and of themselves, disqualify Judge Francis from deserving our support or stamp of approval.”

Thurston said, however, that if the governor believes she will perform like Thomas, “that’s a problem.”

Thompson urged the governor to rescind his appointment and stop criticizing her for asking him to follow the law.

"This is the one of the most egregious examples of racial tokenism that I have ever seen,'' she said Thursday.

Caucus leaders stand firm

Several other Black lawmakers interviewed said that while it may have been the governor’s intention to drive a wedge into the Black community in a pivotal county in an election year, it won’t work.

"I don’t think this is an issue that is going to completely cause a rift,” said Sen. Oscar Braynon, D-Miami Lakes. “We disagree on things all the time … but we understand that there are Black issues that we will agree on.”

Sen. Bobby Powell, chairman of the caucus, said the controversy should remind people that the process for choosing judges and justices was changed 12 years ago to give the governor control.

"While our members are not in unanimous agreement that Judge Francis was an appropriate selection to fill the available vacancy, one thing that we all agree on is crystal clear — the judicial nominating process is fundamentally flawed and has yielded a judiciary that is not fully reflective of the depth and breadth of the diversity of the population that it serves,'' he said Friday.

"While the judicial selection process was designed to give Florida’s governors considerable influence, it was not designed to give them carte blanche to populate a bench with only judicial candidates who share their judicial philosophy and who think like them,'' Powell said. “Floridians do not all think alike, and neither should our judges.”

For the last two years, Thurston has sponsored legislation that would require all current members of the Judicial Nominating Commission to be replaced, and the governor would then be allowed to appoint only three of the nine new members and only five members could belong to the same party.

"This is not really about the Black Caucus,'' Thurston said. “This is about Gov. DeSantis having a philosophy and a (Judicial Nominating Commission) which gives him too much control. We need to have to go back to a system where the Florida Bar has a role.”

Miami Herald reporter Ana Ceballos contributed to this report.